At Community level there are no specific rules governing the founding of IPPP. However, in the field of public procurement and concessions, the principle of equal treatment and the specific expressions of that principle, namely the prohibition of discrimination on grounds of nationality and Articles 43 EC on freedom of establishment and 49 EC on freedom to provide services, are to be applied in cases where a public authority entrusts the supply of economic activities to a third party.9
More specifically, the principles arising from Article 43 EC and Article 49 EC include not only non-discrimination and equality of treatment, but also transparency, mutual recognition and proportionality.10 For cases which are covered by the Directives on the coordination of procedures for the award of public contracts11 ("the Public Procurement Directives"), detailed provisions apply.
The fact that a private party and a contracting entity12 co-operate within a public-private entity cannot serve as justification for the contracting entity not having to comply with the legal provisions on public contracts and concessions when assigning public contracts or concessions to this private party or to the respective public-private entity. In fact, the ECJ held13 that the participation, even as a minority, of a private undertaking in the capital of a company in which the contracting entity in question is also a participant excludes in any event the possibility of an in-house relationship - to which, in principle, public procurement law does not apply - between that contracting entity and that company.14
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9 Case C-458/03, Parking Brixen, ECR 2005, I-8612, paragraph 61.
10 Cf. Commission interpretative communication on concessions under Community law, OJ C 121 of 29.4.2000, page 6.
11 Directive 2004/18/EC, see footnote 6 above, and Directive 2004/17/EC, OJ L 134 of 30.4.2004, page 1.
12 In this Communication the term "contracting entity" covers both contracting authorities within the meaning of Article 1(9) of Directive 2004/18/EC and contracting entities within the meaning of Article 2 of Directive 2004/17/EC.
13 Case C-26/03, Stadt Halle, ECR 2005, I-1, paragraph 49.
14 According to the ECJ (Case C-410/04, ANAV, ECR 2006, I-3303, paragraphs 30 et seq) it is not only the actual participation of a private party in the capital of a publicly owned company that excludes the in-house status of a publicly owned company, but also a contracting entity's intent to open up the capital of its daughter company to private third parties in the future. Thus, public contracts or concessions could not be awarded "in-house" to publicly owned companies the capital of which is intended to be opened to private parties in the course of the performance of the respective public contracts or concessions. Conversely, the theoretical possibility of a private party participating in the capital of a public authority's subsidiary does not, as the Commission sees it, in itself undermine the in-house relationship between the contracting entity and its company.